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CIArb Mediation Lecture, By Amanda Bucklow -
8th October, 2007 It was my pleasure to attend the aforementioned evening event, Amanda Bucklow essentially recounted some of what she has learned and observed during her career as a full time commercial mediator. Amanda also gave consideration to the future and to education. Her approach was lively and thought provoking and it was interesting to listen to elements of her twelve year career dedicated to performing the art of mediation. Whilst I could report many interesting aspects of this well attended lecture, two particular points are fixed in my mind and therefore I would like to consider them. Firstly, the matter of undergraduate education and secondly mediators accepting appointments outside of their area of professional experience. Now we will probably all be aware that mediation training is provided by a number of organisations not least the Chartered Institute of Arbitrators, The Centre for Effective Dispute Resolution, The Academy of Experts etc and that there is now the dawning of universities considering or offering post graduate mediation courses. In general this is naturally to the benefit of mediation and therefore something that I am pleased to support. Amanda however suggested that perhaps it would be worthy to consider an undergraduate degree course in mediation and she gave suggestions as to what subject areas she might like to include, which were wide and varied. Space would not allow me to recount these. However, it did occur to me that there would be no difficulty providing enough subject areas for a 3 or 4 year course. My thoughts are yes, that is a very good place to start but life experience adds much to a mediators' skill set and so I am not entirely certain what the progression route for a twenty one or two year old graduate would be. Notwithstanding they would undoubtedly learn very valuable skills and this scenario would assist 'The journey to a credible profession'. As I have said, a very good place to start. Amanda had clearly given this matter a lot of thought and whilst it was clear that she was not suggesting substantial regulation of the mediation profession, I think that she was mindful that there was a need for the public to be educated further as to what it is a mediator actually does and that qualifications in whatever respected form will assist the journey towards a credible profession, which is something that is continuing to evolve. The second point which was the basis of a great deal of debate, at the event and indeed afterwards was as to whether a mediator should accept an appointment which was outside his/her professional experience. There were essentially two views expressed, the first being that a good mediator can mediate any dispute, which Amanda supported based on her experience. The second being that a mediator should only deal with disputes within the remit of his/her professional experience, which was a view shared by a number of construction/engineering attendees. Now this was debated and Amanda came up with quite convincing experience. However, in contrast others said that they would only mediate on issues that they fully understood in the technical sense. My suggestion is that in reality the market place decides. My mediation experience is that generic enquiries come from a disputing party. I am for my sins a construction industry dispute resolution professional and a client contacts me on that basis. It is my role to consider as to whether mediation is appropriate (and it often is) and then make the suggestion that it is attempted, naturally by consent. Now I of course am only an occasional mediator and I do not pursue mediation work on a full time basis. Neither do clients approach me to perform mediation or any other dispute resolution work other than in the construction context. My perception is that this is correct for my particular circumstances. However, I suspect that the observant reader has noted that we have all but come full circle. We need to educate the public as to what mediators do, not least so that hopefully more disputes will be presented to mediation, we need to educate would be mediators earlier, if you accept that the undergraduate training is of benefit. Thereafter it is likely that graduates would be in a position to pursue a career as a full time commercial mediator. Would this work in the construction industry? Graduates would dare I say be mediators first, rather than qualified in another field before making the leap to mediation as an additional skill for the career tool kit, as others, including myself have done. Looking at the wider picture my view is yes a mediator should be able to mediate any dispute, if the parties (thus the market) allow him or her to do so in the first instance. Whether a construction industry client would consider credible a mediator that had to ask questions as to the outline technicalities of the dispute is another matter. My fear in this regard would be that it would not aid the journey 'to a credible profession' for mediation in the construction industry. As I have said above in reality the market place decides. Further comments from readers by email to kevin.trash@gleeds.co.uk would be gratefully received. I convey my thanks to Amanda for a very informative and interesting lecture. Additionally I would like to acknowledge the input of the debating attendees, which contributed significantly to the experience. Mr Kevin M Trash Roderick O'Driscoll |
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